Vol. 15 No.12 (December 2005), pp.1022-1024

EU ENLARGEMENT AND THE CONSTITUTIONS OF CENTRAL AND EASTERN EUROPE, by Anneli Albi. New York: Cambridge University Press, 2005. 290pp. Cloth £48.00/$85.00.  ISBN: 0521845416.  Paper. £21.99/$37.99.  ISBN: 0521607361.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration

University of Wisconsin-La Crosse.  Email: mcdougal.step [at] uwlax.edu

When the editor asked me to review this book, I had many reservations. First among them was the fact that I do not even follow European politics, much less the legal politics in Eastern and Central Europe. All I could offer, I said, was a generalist’s reading: what can U.S. legal academics learn? The editor agreed, and with that caveat, I proceed.

Anneli Albi did not write this book for a general U.S. academic audience. It is a book well worth studying for those already interested in the subject and thus for those with more existing knowledge of European Union history than gathered by, say, daily pursuing the New York Times.  Nonetheless, a close reading teaches – some might say reiterates – important lessons in the scholarly struggle to grasp the efficacy of law in a post-whatever world.

However, this is not the author’s task. Albi’s question is clearly descriptive: how have the bedrock legal and political principles of popular sovereignty, rooted in each national constitution, been adapted to the formal legal consequences of EU membership? What she describes are the struggles up to around 2004 to extend an emerging European legal order to the countries of Central and Eastern Europe (CEE) as those nations join the EU. Is there an emerging European constitutional order? If Albi’s book has one flaw, it is in dwelling so much in legalities with only passing references to the associated politics.

The “Older Members” had to cope with such legal and/or constitutional adaptation when the EU formed. Albi argues that even in its formative stages, the national legal and constitutional changes brought about to accommodate the existence of EU entities were various, diverse and without legal uniformity. Now, with EU enlargement, two basic constitutional problems exist: how CEE countries adapt to an existing EU legal status quo; and how some unique characteristics of CEE constitutions pose a greater challenge to integration than the constitutions of older members.

Albi describes how the CCE constitutions reflect each nation’s legal reaction to the end of Soviet domination. Here, the commonalities may exist only in the mind of the analyst. Each nation made its own choices about structuring its post-Soviet law and government. Yet, each constitution placed greater emphasis on “sovereignty” and “independence” – even as those terms are given diverse constitutional definitions – establishing “with detail and precision the mechanisms and procedures for exercising power” (p.115). The separate constitutional [*1023] provisions are listed, described and compared with remarkable detail. Several CEE constitutions contain non-amendable sovereignty provisions. Most require national referenda with minimum turn-out requirements for constitutional amendments to be ratified. EU membership thus raises more difficult constitutional issues in CEE countries, and as a consequence, more difficult political issues.

This approach makes the entire book more descriptive than analytical, and intentionally so. Albi is not out to de-construct or re-construct any paradigm, although the paradigms are well known. Albi does use and create academic categories and typologies to illuminate the common problems, politics and constitutional solutions (many still in process), but she uses them with great sensitivity. She is careful to explain each CEE nation’s constitutional actions in terms of its own unique history and politics. On the other hand, the descriptive narrative and exquisite attention to detail often makes the book seem overtly formalist, which in total it is not. Description, as such, can reveal much when an underlying factor can be plausibly posited. Here, there is no conceptual problem: the rule of law is assumed to be working throughout the current and prospective EU membership. Thus, in Albi’s approach, some national legal and constitutional adaptation to the realities of EU law is a given. Law will follow politics as the benefits of EU membership come to the fore. Even if there is no over-reaching plan, no formula or template, something has emerged and continues to emerge.

On the other hand, it is clear that what Albi describes so well does not fit easily into existing scholarly theoretical categories, arising as they do from an earlier European political reality. Thus, description is a strength. Even as she relies in passing on much of the academic literature on post-nationalism, Albi’s task is not to engage in those debates all that much. She has her preferences, of course, and lays out a five-point minimal model of how to move toward a European constitutional order. But, one gets no feeling that Albi believes law or legal scholarship will – or even can – lead the way. Nonetheless, she predicts “a favorable interplay between national and European legal orders, due to their imprint on national legal education” (pp.120-21).  In any event, she sees a major paradigm shift in the offing: “the concept of ‘constitution’ appears to be ‘in transition’” (p.121).

Running through the book are two “paradigms.”  First, the traditional approach to national sovereignty, based largely on an ethno-centric notion of nationhood, wherein a national constitution forms the basis for the legitimacy of national government; in this view, the EU is a union of nation-states and not a federal government: “In general, federal visions of Europe caused uneasiness in the region where sovereignty had been newly established” (p.180).

The other is an emerging “post-national concept,” in which the EU is viewed as something more than the product of a treaty among otherwise sovereign governments. In this view, the EU is something more. Is there enough “content to a European demos to justify stronger democratic representation through the European Parliament” (pp.130-1, where Albi makes passing [*1024] reference to Habermas’ idea of constitutional patriotism)? “The sovereign state is no longer the only source of [legal] authority: within the scope of EU law, the authority derives from the Treaties, adjudicated by the [European Court of Justice] or, in borderline cases, by the Member States through the Intergovernmental Conference” (p.177).  In the only real blind spot in the book, however, Albi does little to say what the content of “a European demos” is or might come to be. The ethnocentric paradigm has great cultural and, thus, political legitimacy. Hence, while acknowledging that existent CCE governments rest on some national socio-cultural foundation, Albi offers readers little as to what European socio-cultural foundation exists, or is likely to come into existence, upon which Europe-wide democratic government might rest.

What is emerging, Albi characterizes as a truly dualist system of law – sovereignty both hierarchical and vertical. For this a new concept has emerged: “competence.” Competence is distinguished from “sovereignty,” thus allowing national governments to delegate (or, as Albi prefers “transfer”) certain specified powers to EU institutions without engaging in a delegation (or transfer) of sovereignty itself. There is much scholarly argument from this perspective, as well as several national constitutional court decisions. The decision of the German Constitutional Court in The Maastricht Case is offered as illustrative. The Maastricht Treaty was found to not violate German national sovereignty because of the specificity of these delegated “competences.” Ultimate authority, including authority to judge the actions of EU institutions, lies with national governments and national courts operating under national constitutions. In the final chapter, Albi spells out how much of this would have changed under the rejected (since publication) European Constitution.

If these trends continue – and the political failure of the proposed constitution raises many questions about that – then a new “paradigm” of governance under the rule of law may indeed be developed, one that does not follow any historical model, such as U.S. federalism. Rather (like U.S. federalism read as law and politics), something is emerging which reflects unique European experience and needs. Grand theorists need not apply!

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© Copyright 2005 by the author, Stephen McDougal